Snatching victory from the jaws of defeat, Donuts has prevailed in the two-horse race for the .charity gTLD.

The company appears to have privately resolved its contention set, paying off rival bidder Famous Four Media, judging by updates to ICANN’s web site today.

The gTLD had been scheduled for an ICANN “last resort” auction in April, but that’s now off.

Famous Four has also withdrawn its application, leaving Donuts the only remaining applicant.

I believe it will be Donuts’ 239th 240th gTLD.

But for a while it looked like Famous Four had a slam-dunk on its hands.

Back in 2014, the Independent Objector of the new gTLD program had filed an Community Objection against Donuts’ application, saying it was too risky to unleash a .charity domain onto the world without registration eligibility restrictions.

The fear was (and probably still is) that fraudsters could use the domains to lend an air of credibility to their online scams.

The IO prevailed, pretty much gifting Famous Four — which had proposed restrictions — the TLD.

But Donuts embarked upon an arduous set of appeals, including an Independent Review Process case, that culminated, last December, in a ruling (pdf) that reversed the original Community Objection decision.

That cleared the way for Donuts back into the application process and, now, the private auction it seems to have won.

Due to ICANN’s adoption of Governmental Advisory Committee advice on sensitive strings, Donuts will be obliged to put some Public Interest Commitments into its .charity contract, with the aim of reducing abuse.

ICANN has rejected claims that the .sport gTLD contention set was settled by an arbitrator who had undisclosed conflicts of interest with the winning applicant.

Its Board Governance Committee last week decided that Community Objection arbitrator Guido Tawil had no duty to disclose his law firm’s ties to major sports broadcasters when he effectively eliminated Famous Four Media from its fight with SportAccord.

Back in 2013, SportAccord — an applicant backed by pretty much all of the world’s major sporting organizations — won the objection when Tawil ruled that FFM’s fully commercial, open-registration bid could harms its members interests.

FFM complained with Requests for Reconsideration, Ombudsman complaints and then an Independent Review Process complaint.

It discovered, among other things, that Tawil’s law firm was helping broadcaster DirecTV negotiate with the International Olympic Committee (one of SportAccord’s backers) for Olympics broadcasting rights at the time of the Community Objection.

The IRP panel ruled in February this year that the BGC had failed to take FFM’s allegations of Tawil’s “apparent bias” into account when it processed Reconsideration requests back in 2013 and 2014.

So the BGC reopened the two Reconsideration decisions, looking at whether Tawil was required by International Bar Association guidelines to disclosed his firm’s client’s interests.

In a single decision (pdf) late last week, the BGC said that he was not required to make these disclosures.

In each of the three claims of bias, the BGC found that the connections between Tawil and the alleged conflict were too tenuous to have required disclosure under the IBA rules.

It found that the IOC and SportAccord are not “affiliates” under the IBA definition, which requires some kind of cross-ownership interests, even though the IOC is, judging by the .sport application, SportAccord’s most valued supporter.

The BGC also found that because Tawil’s firm was representing DirecTV, rather than the IOC, the relationship did not technically fall within the disclosure guidelines.

For these and other reasons, the BGC rejected FFM’s Reconsideration requests for a second time.

The decision, and the fact that FFM seems to have exhausted ICANN’s appeals mechanisms, means it is now more likely that SportAccord’s application will be allowed to continue negotiating its .sport Registry Agreement with ICANN, where it has been frozen for years.

ICANN has overturned a Community Objection decision, allowing a .med new gTLD applicant back into the game, after a Request for Reconsideration from the applicant.

It’s the first time ICANN has overruled an objection panel during the new gTLD program and the first time in over a decade any RfR of substance has been accepted by the ICANN board of directors.

Medistry lost a CO filed by the program’s Independent Objector, Alain Pellet, back in January.

Under program rules, that should have killed off its application for .med completely.

But the company filed an RfR — ICANN’s first and cheapest appeals mechanism — claiming that Pellet acted outside his jurisdiction by filing the objection when there was not at least one informal objection from a community member on the public record.

Its case, as outlined in its RfR, was quite compelling, as I outlined in a piece in March.

Medistry argued that the International Chamber of Commerce’s panelist, Fabian von Schlabrendorff, had cited two non-existent informal community objections in his decision.

One of them literally did not exist — and von Schlabrendorff went so far as to infer its existence from its absence — while the other was “advisory” in nature and was not intended as an objection.

In March, ICANN’s Board Governance Committee accepted Medistry’s RfR on a preliminary basis, to give it more time to consider whether the IO had acted outside of the new gTLD program’s rules.

The BGC concludes that, based on information submitted with this Request, there is substantial and relevant evidence indicating that the Objection was inconsistent with ICANN procedures, despite the diligence and best efforts of the IO and staff. Specifically, the Requester [Medistry] has provided the BGC with uncontroverted information demonstrating that the public comments on which the Objection was based were not, in fact, in opposition to the Requester’s application. Accordingly, the BGC concludes that ICANN not consider the Expert Determination at issue and that the Requester’s Application for .MED is therefore permitted to proceed to the next stage of process in the New gTLD Program.

In other words: 1) Pellet inadvertently acted outside of his remit 2) the ICC’s ruling on the objection is simply cast aside and 3) Medistry’s application is back in the .med contention set.

The main reason this RfR succeeded while all others to date have failed is that Medistry managed to provide new information, in the form of clarifying letters from the two non-existent informal objectors, that was not originally available.

The large majority of previous RfR’s have failed because the requester has failed to bring any new evidence to the table.

The public comments from [National Association of Boards of Pharmacies] and [American Hospital Association] that were the basis for the Objection were vague and open to a number of interpretations. Given that there is substantial and uncontroverted evidence from the authors of those public comments, indicating what NABP and AHA intended, the BGC cannot ignore this information in assessing the Request or reaching its determination.

I think ICANN is going easy on the ICC and von Schlabrendorff (how can something that does not exist be “open to a number of interpretations”?) but it seems that the RfR process has in this case nevertheless been a bit of a success, overturning an extremely dodgy decision.

Medistry has become the first new gTLD applicant to win an appeal to ICANN over an objection decision that went against it.

The .med hopeful has also become the first entity in years to successfully use the much-derided Reconsideration Request process to get ICANN’s board of directors to revisit a decision.

The company’s application received a Community Objection filed by the new gTLD program’s Independent Objector, Alain Pellet, along with a bunch of other healthcare-related gTLD bids.

Medistry lost, meaning its application should be dead in the water.

But it appealed using the Reconsideration process, arguing that Pellet failed to follow the rules laid out for the IO in the program’s Applicant Guidebook.

These rules state that the IO can only object on Community grounds if there is at least one informal objection from a community member on the public record, for example filed as ICANN comments.

Medistry claims that the IO did not pass that test in its case and the ICANN board’s Board Governance Committee, which handles Reconsideration Requests, reckons that claim merits further review.

Judging by the International Chamber of Commerce decision (pdf), comments filed by the National Association of Boards of Pharmacy and the American Hospital Association were critical in showing “substantial opposition” from the healthcare community.

Without such opposition, the IO would have had no right to object.

Medistry argued during the objection case that the NABP comment, which talks about the need for patient safety, was purely “advisory” in nature and did not represent an objection to its .med application.

The ICC panelist, Fabian von Schlabrendorff, disagreed, writing:

The Expert Panel accepts that the comments made by the National Association of Boards of Pharmacy (NABP), on which the Independent Objector relies for the purpose of demonstrating substantial opposition, represent an expression of opposition, i.e. resistance or dissent, to the Application, going beyond merely having an advisory character as the Applicant suggests.

The problem with that interpretation is that it turns out to be dead wrong. Von Schlabrendorff read too much into the original NABP comment.

Medistry submitted as part of its Reconsideration Request a letter from NABP saying:

We wish to clarify that NABP’s comment was intended to be advisory in nature, stressing that health-related gTLDs should account for patient safety and implement protections against fraud and abuse. In submitting this comment, NABP did not oppose Medistry’s application to be the Registry Operator for the .MED gTLD, nor take any position as to whether Medistry’s .MED application contained appropriate safeguards.

The second public “objection” used by the IO to allege substantial opposition, an argument that von Schlabrendorff accepted, came from the America Hospital Association.

Except the AHA did not file a comment on the Medistry application (well, it did, but it was withdrawn two days later in September 2012, long before the objection process began).

The AHA did object to the other three applications for .med, filed by Google, Hexap and DocCheck, but not to Medistry’s application.

Remarkably, von Schlabrendorff chose to interpret the absence of an AHA objection as the existence of an AHA objection, speculating that it did not object to Medistry’s application due to nothing more than an oversight, and applied its objections against Medistry regardless.

even if the Applicant had established in understandable and verifiable detail that the AHA on purpose decided not to oppose the Application, such decision of the AHA would and could not change the fact that the NABP expressed opposition to the Application on grounds of public health concerns, and that the AHA raised essentially identical concerns with regard to all other .med applications.

To me, this looks like Medistry was given the Kafkaesque challenge of proving that the AHA had not objected to its application, even though there was no such objection on record.

Using a von Schlabrendorff level of speculation, I’m guessing that the AHA did file an objecting comment originally, but withdrew it a couple of days later when informed that Medistry’s parent company is an AHA member.

Given that the NABP and AHA “objections” both turned out to be non-existent, the ICANN BGC has naturally enough decided that the Medistry Reconsideration Request merits further consideration.

the BGC finds that Request 14-1 should be granted to provide sufficient time to further evaluate whether any actions were taken in contravention of established policy or procedure, such as whether the threshold requirement set forth in Section 3.2.5 of the Guidebook was satisfied. The BGC will ensure that ICANN further evaluates this issue and provides a report to the BGC for consideration

It is important to note that the BGC’s acceptance of this Reconsideration Request should in no way reflect poorly on the IO or be seen as a finding that the IO failed to properly discharge his duties. Rather, this determination is a recognition that the Requester has submitted substantial information indicating that the IO’s assessment of what could be described as vague comments (particularly those of NABP), may not have been consistent with what the commenters intended.

What this seems to mean is that the Medistry application for .med is undeaded and that von Schlabrendorff’s increasingly dodgy-looking decision is going to be looked at.

It also means that Reconsideration Requests are not entirely useless.

No Reconsideration Request of any consequence has been accepted by the BCG in the 15 years the procedure has been active.

Generally, they’re thrown out because the requester fails to provide any new information that wasn’t available at the time the offending decision is made, which is a prerequisite for success.

In this case, Medistry’s production of the NABP letter of clarification seems to have been critical.

Twelve new gTLD applicants, representing many dozens of applications, have called on ICANN to create an appeals process for when Community Objections have debatable outcomes.

Writing to ICANN and the International Chamber of Commerce this week, the applicants focus on the recent decision in the .sport case, which they said proves that ICC panelists don’t fully understand the Community Objection policy as laid out in ICANN’s Applicant Guidebook.

The letter points to five “glaring errors” in the “fatally flawed” .sport decision, in which Olympics-backed applicant SportAccord prevailed over Famous Four Media’s competing application.

The signatories — which include Radix, United TLD, Donuts, Famous Four, TLDH and others — say that the ICC panelist simply assumed SportAccord represented the “sport” community and failed to pinpoint any “likelihood of material detriment” that would be caused by Famous Four’s .sport going ahead.

It seems to me that the latter arguments are much more well-founded.

While the letter tries to pick holes in the panelist’s finding that SportAccord represents enough of the “sport” community to be able to win the objection, the arguments are pretty tenuous.

The applicants use an definition of “community” found elsewhere in the Guidebook, for example, to attempt to show that the panelist failed to follow the guidelines for establishing a community in a Community Objection.

The panelist’s actual ruling uses the definition of “community” from the relevant part of the Guidebook and seems to follow it fairly closely. The applicants make a poor job of questioning his logic.

However, on “detriment”, the letter seems to be on much firmer ground.

It argues that the panelist deliberately lowered the bar from “likelihood of material detriment” to “possibility of material detriment” in order to hand SportAccord a victory.

The letter states:

If the Expert’s current logic is followed, every application, including the Objector’s own application, creates “possible” damage. In this case, an allegation of material detriment against any application would be upheld because there is future “possible” damage.

It also makes reference to the fact that the panelist appears to in many cases have been weighing the Famous Four application against SportAccord’s, which was not his job.

It reads in part: “The Expert did not identify a single objectionable or lacking aspect in the application that creates a likelihood of material detriment.”

The applicants call on ICANN to immediately create an appeals mechanism for Community Objections, and to ensure that ICC panelists are given training before making any more decisions.